O'Connell informed youth that he would be taken into custody, at which
point youth asked to speak to his father. When his father confronted him, youth initially
denied starting the fire, but he eventually confessed again. Youth was transported to the
sheriff's office where he confessed a fourth time, revealing that he had used rubbing
alcohol to accelerate the fire and that he had started the fire by placing the newspapers on
top of a pie plate.

The state filed a 17-count petition alleging juvenile court jurisdiction over
youth based on acts that, if committed by an adult, would constitute first-degree arson,
felony murder, and criminally negligent homicide.

II. THE ADMISSIBILITY OF YOUTH'S STATEMENTS TO POLICE

Youth filed a pretrial motion to suppress his statements to police. He relied
on two grounds. First, he argued that, due to his impaired capacity, his statements were
not voluntary as required by both the state and federal protections against coerced
confessions. Second, he asserted that he did not knowingly and voluntarily waive his
Miranda rights.

In support of his motion, youth offered medical evidence of his limited
cognitive capacity. More specifically, over the course of a four-day hearing, youth
presented medical evidence that he has the cognitive capacity of a seven-year-old child,
lacks the ability to engage in abstract thought and reasoning, has considerable difficulty
reading, and has an intelligence quotient (IQ) that hovers in the "borderline functioning"
range. According to youth's evidence, his verbal scores are generally higher than his
performance skills, which at times fall within the "mildly mentally retarded" range. Two
of youth's experts testified specifically about youth's ability to understand Miranda
warnings. Dr. Konkol believed that youth could recognize "aspects of meaning or some
parts" of the significance of the Miranda warnings but he would have difficulty drawing
inferences or implications from the warnings. Youth's other expert, Dr. Bolstad,
described youth as having a good "verbal memory" that at times makes him appear to
understand what he is saying when, in fact, he does not. Bolstad concluded that youth
apparently had memorized the Miranda warnings and their definitions but lacked an
appreciation of the adversarial nature of the interviews and of the potential for or
consequences of self-incrimination. Bolstad explained that youth's practical
understanding of the Miranda warnings was limited and that he did not understand that
those rights applied in the particular context in which he confessed. As Bolstad put it,
youth did not understand that he could have an attorney with him "right then and right
there."

In response to youth's evidence, the state presented the testimony of several
officers at the hearing, including O'Connell, who discussed youth's prior police contacts
and his fascination with the television show "Cops." The state also presented expert
witnesses who testified as to youth's cognitive ability. Dr. Sabastian clarified that,
although youth has always been identified as learning disabled, he has never been
identified as mentally retarded. She agreed that youth "would never understand reading
Miranda rights," but she believed that if the rights were read to him, youth would be able
to comprehend their meaning. The state also presented testimony from Dr. Hulteng that
youth had the cognitive capacity to understand Miranda warnings. In examining youth,
Hulteng asked him why he had agreed to talk to O'Connell. Youth explained, "When he
read me my rights, that made me nervous. I was probably going to get arrested. He didn't
even ask me if I wanted a lawyer." That statement, along with others, indicated to
Hulteng that youth understood both the Miranda warnings and the fact that his
relationship with O'Connell was adversarial. Hulteng's testimony, however, was
somewhat equivocal about when that understanding developed--i.e., whether youth
understood the warnings and the adversarial nature of the relationship when he confessed
or whether he developed that understanding at some later point, after being arrested.
Hulteng stated that youth's understanding of Miranda "was a pretty clear one with the
interview that I did," but then he stated that "any inference about the past is less certain."

The juvenile court granted youth's motion to suppress as to all statements
that youth made in response to police questioning after the point at which youth said,
"We're done." As to all statements before that point, the trial court denied the motion.
On appeal, youth assigns error to the juvenile court's partial denial of his motion,
renewing the arguments he made below that, under both the Oregon Constitution and the
United States Constitution, all of his statements were involuntary and that his Miranda
waiver was invalid. Because this is a juvenile proceeding, we review the facts de novo,
including the facts at issue on the motion to suppress. State ex rel Juv. Dept. v. Gallegos,
150 Or App 344, 347, 945 P2d 656 (1997). We first consider whether youth's statements
were voluntary. We then turn to the validity of youth's waiver of his Miranda rights.

A. Voluntariness of Youth's Statements

Relying on both Article I, section 12, of the Oregon Constitution and the
Fourteenth Amendment to the United States Constitution, youth argues that his statements
to police are inadmissible because his age and limited cognitive ability, standing alone,
rendered them involuntary. In response, the state argues that both the state and federal
guarantees against involuntary confessions protect against incriminating statements
elicited through police coercion or similar governmental overreaching. According to the
state, the personal characteristics of someone questioned by police are not enough, in and
of themselves, to render a confession "involuntary" for purposes of the constitutional
guarantees on which youth relies. Here, youth does not contend that the police engaged
in overreaching or otherwise conducted themselves inappropriately, nor does the record
suggest that they did. Thus, youth's challenge to his statements as "involuntary" hinges
on whether voluntariness is an inquiry directed to the mental state and capacity of the
accused, or one directed to the governmental forces brought to bear on that mental state.

Ordinarily, we would address that issue under the Oregon Constitution
before considering youth's challenge under the parallel federal provision. State v.
Charboneau, 323 Or 38, 53, 913 P2d 308 (1996) (stating principle). But we instead
begin with youth's federal claim. We do so because the United States Supreme Court's
decision in Colorado v. Connelly, 479 US 157, 166, 170, 107 S Ct 515, 93 L Ed 2d 473
(1986), is squarely on point and readily resolve's youth's federal claim. In contrast,
youth's claim under the Oregon Constitution requires more extensive analysis, as we
explain below.

In Connelly, the defendant approached a police officer and, without
prompting, confessed to murder. The officer immediately advised the defendant of his
Miranda rights, which the defendant waived. The officer then began to question the
defendant. The defendant revealed that he had been a patient in several mental hospitals,
stated that he wanted to talk to the officer "because his conscience had been bothering
him," and then described details of the crime. At trial, the defendant moved to suppress
his statements to police, asserting that he suffered from chronic schizophrenia and that his
condition interfered with his ability to make free and rational choices.

What constitutes police overreaching sufficient to invalidate a statement
under the federal analysis cannot be readily quantified. The amount of pressure that
police constitutionally may exert varies with the "totality of circumstances" surrounding a
statement; the factors to be considered as a part of that totality include a suspect's age,
education, and intelligence. In rare instances, police misconduct may be so extreme that
it renders a suspect's confession involuntary without any examination of the suspect's age,
education, intelligence, and like factors. See Brown, 297 US at 286. But the converse is
not true. That is, the personal characteristics and circumstances of the suspect, even when
extreme, as a matter of law cannot alone render statements involuntary. SeeConnelly,
479 US at 164-66. Personal circumstances that may make a suspect less able to resist
coercion are legally relevant only if police, in fact, exert coercion. The conduct of the
police therefore necessarily is the starting point of the analysis.

Under the federal standard for involuntariness, youth's challenge to the
admissibility of his statements fails. Youth does not argue on appeal, nor did he argue
below, that O'Connell's conduct involved anything that can be characterized as police
overreaching or coercion. Nor, on de novo review, do we find any evidence of coercive
conduct. To the contrary, O'Connell modified his behavior to accommodate youth's age,
experience, and capacity. The interviews were relatively short and took place in a
nonthreatening atmosphere. O'Connell was dressed in civilian clothing during the
interviews, and he did not make any express or implied threats or promises of leniency
nor in any other way compel youth against his will to discuss the events in question. In
short, there simply is no police overreaching of any kind or degree in this case. Because
there is not, the trial court correctly rejected youth's federal involuntariness challenge.

With regard to the second of the Priest inquiries--i.e., the historical
circumstances that led to the creation of Article I, section 12--little direct legislative
history surrounds the adoption of Article I, section 12. That section, like most of the
Oregon Constitution's Bill of Rights, was borrowed from the 1851 Indiana Constitution; it
generated little or no reported discussion at Oregon's constitutional convention. See
generally Charles Henry Carey, ed., The Oregon Constitution and Proceedings and
Debates of the Constitutional Convention of 1857, 28, 310 (1926). We are not limited to
an examination of that legislative history, however. When a constitutional provision is
rooted in English and American common law traditions, those traditions are part of the
historical circumstances that we may consider as well. See Statev. Fugate

We need not examine the relevant sources describing the historical
foundation of the protection against compelled testimony at length, because the Oregon
Supreme Court has already done so. In State v. Fish, 321 Or 48, 54-56, 893 P2d 1023
(1995), the court considered whether field sobriety tests are "testimonial" in nature and
therefore within the scope of Article I, section 12. Id. at 54-56. In resolving that issue,
the court broadly examined the nature of the protection that Article I, section 12, was
designed to afford criminal defendants. The court's articulation of the central principle
that animates the guarantee is particularly apt here:

"Although the historical basis of the right against compelled self-incrimination has been subject to varying interpretations, it is clear that the
right originated and continued to develop as a protection against
inquisitorial methods of investigation and prosecution."

Id. at 55 (emphasis added; citations omitted). History thus underscores what Article I,
section 12, by its terms expressly provides: The guarantee against compelled testimony is
a protection against governmental overreaching.

Finally, as Priest prescribes, we consider the case law surrounding Article I,
section 12. 314 Or at 417. Although no case has explicitly held that police overreaching
is necessary to trigger the protection of that clause, the cases are uniformly consistent with
that conclusion.

The earliest Oregon cases suppressing confessions as involuntary had a
common law rather than a constitutional source. At common law, the rule was that a

"the key to the 'free and voluntary' character of the confession is in the
inducement made to the defendant--was there any promise or threat made to
the defendant which would elicit a false confession[.]"

State v. Smith, 301 Or 681, 693, 725 P2d 894 (1986). Thus, both the constitutional
protection against involuntary confessions and the common-law principle that it embodies
fundamentally are protections against overreaching on the part of government officials
(e.g., the police).

To the contrary, several cases decided under Article I, section 12, point in
the opposite direction. Illustrative among them is State v. Burks, 107 Or App 588, 813
P2d 1071, rev den 312 Or 151 (1991) and State v. Vu, 307 Or 419, 424-25, 770 P2d 577
(1989), both of which involved voluntariness challenges under Article I, section 12, that
are particularly analogous to youth's challenge in this case. The defendant in Burks
predicated her challenge to the voluntariness of her statements on her youth, her personal
mental state, and the internal forces that caused her to confess to murder. We described
her argument as

"essentially that the circumstances of her life and those attendant on the
interviews made her statements involuntary. Specifically, she contends that
she was 15 years old, had had a 'horrendous childhood,' had lived on the
street for three years, was a prostitute, was addicted to drugs, was injured
and in pain, was still under the influence of the medication given her at the
hospital, was isolated from her father and had confessed because she
thought she was 'supposed to.'"

Burks, 107 Or App at 591-92. We rejected her voluntariness challenge, observing that
she did not argue that police "acted improperly or made threats or promises to her." Id. at
591.

The defendant in Vu likewise made no claim that the investigating officer
had elicited his statement through improper threats or promises. Instead, the defendant,
who had immigrated from Vietnam about seven years before the crime, relied on cultural
disparities and his poor ability to speak and understand English as rendering his
statements involuntary. Vu, 307 Or at 424. The Supreme Court rejected his challenge,
concluding that the record established that the defendant's statements were the product of
an "essentially free and unconstrained choice" rather than "made under the influence of
fear produced by threats or of promises or intimation of favor." Id. at 424-25. The court
emphasized:

"[D]efendant offers no basis for the claim that the statement was
involuntary other than simply claiming cultural differences and lack of
English language skills. Defendant does not contend that the cultural
differences coerced him into making the false statement or that he
misunderstood the question because of his poor language skills. * * *
Whatever the cultural disparities and alleged deficits in the English
language, defendant's statement was not involuntary."

Viewing the constitution's protection against compelled testimony through
the interpretative lens of Priest--i.e., plain text, historical circumstances, and relevant case
law--leads to a single conclusion. Article I, section 12's, guarantee that no person shall be
compelled in any criminal prosecution to testify against himself is directed distinctly at
governmental coercion or similar overreaching. As a result, we now make explicit what
for over a decade has been implicit in the analysis and approach of the cases decided
under Article I, section 12: police overreaching is an essential predicate of a challenge to
the admissibility of a statement or a confession as involuntary.

Thus, the state constitutional involuntariness analysis parallels the federal
analysis. The amount of pressure that police constitutionally may exert will vary with the
"totality of circumstances" surrounding a statement; the factors to be considered as a part
of that totality include a suspect's age, education, and intelligence. See generally State v.
Davis, 98 Or App 752, 780 P2d 807 (1989), rev den 309 Or 333 (1990). But a suspect's
personal characteristics and circumstances as a matter of law cannot alone render
statements involuntary. Rather, such circumstances are relevant only if police, in fact,
exert coercion and only insofar as those circumstances render a suspect less able to resist
that coercion. As is true of the federal analysis, the conduct of the police therefore
necessarily is the starting point of the analysis of whether a confession is involuntary
under Article I, section 12. Here, as already discussed, youth does not argue that police
conducted themselves inappropriately in any fashion; the record refutes any suggestion
that they did. Consequently, youth's challenge under Article I, section 12, fails.

B. Miranda Waiver

Our conclusion that youth's confession was voluntary does not end our
inquiry regarding the Miranda waiver. A waiver not only must be "voluntary in the sense
that it was the product of a free and deliberate choice," it must also be "made with full
awareness both of the nature of the right being abandoned and the consequences of the
decision to abandon it." Colorado v. Spring, 479 US 564, 573, 107 S Ct 851, 93 L Ed 2d
954 (1987) (citing Fare v. Michael C., 442 US 707, 725, 99 S Ct 2650, 61 L Ed 2d 197
(1979). The "knowing and intelligent" prong of the waiver analysis tests whether, under
the totality of the circumstances, the defendant "knew that he may choose not to talk to
law enforcement officers, to talk only with counsel present, or to discontinue talking at
any time." Id. at 574. The inquiry necessarily focuses primarily on the defendant's state
of mind, rather than on police conduct, and overreaching is not required to find that a
waiver was not "knowing and intelligent." In juvenile cases, we consider, among other
circumstances, the juvenile's age, experience, education, background, and intelligence and
whether the juvenile has the competency to understand the Miranda warnings and the
consequences of waiving them. Fare, 442 US at 725; see alsoState ex rel Juv. Dept. v.
Cook, 138 Or App 401, 405, 909 P2d 202 (1996), aff'd 325 Or 1, 932 P2d 547 (1997)
(similarly noting circumstances to be considered in determining validity of waiver under
the Oregon Constitution).

Youth argues that his age and diminished capacity render a "knowing and
intelligent" waiver unlikely if not impossible. In examining the circumstances
surrounding youth's confession, we have carefully reviewed O'Connell's testimony
describing each interview with youth, youth's taped statements to police, and the detailed
expert testimony regarding youth's cognitive capabilities and his ability to understand the
Miranda warnings and to appreciate the adversarial nature of the investigation. The trial
court found--and we agree--that, under the totality of the circumstances, youth had a
sufficient understanding of the Miranda warnings and the implications of waiving his
rights. We find the following circumstances particularly relevant: O'Connell slowly and
carefully read the Miranda warnings to youth, stopping after each one, and asking youth
to define them. Youth was able to repeat each warning and to give appropriate
definitions. Youth admitted that, when O'Connell read the warnings, "I kind of figured
out I was going to get arrested. The cops don't read you your rights for no reasons."
When asked how he knew he would be arrested, youth said that he was familiar with the
scenario from watching "Cops." Youth also had prior contacts with police. See Cook,
138 Or App at 405 (considering a 14-year-old youth's prior police contacts in determining
that he validly waived Miranda rights). Although the mental health and medical experts
could not agree on the precise degree to which youth was able to grasp the Miranda
concepts, all of the experts did agree that youth had the cognitive capacity to understand
the warnings; their differences of opinion in that regard were ones of degree.

Accordingly, we conclude that the trial court correctly suppressed only
those statements made after youth attempted to assert his right to be silent. Youth's
statements made prior to that point were admissible because they were voluntary and
because youth validly waived his Miranda rights.

III. SUFFICIENCY OF EVIDENCE: FIRST-DEGREE ARSON

We turn to the question of whether the evidence adequately supports the
trial court's finding that youth committed acts that, if committed by an adult, would
constitute the crimes of first-degree arson and felony murder. The adequacy of the
evidence on both offenses turns on whether the state's proof of first-degree arson sufficed,
because the felony murder charge depends on youth's commission of acts that would
constitute that underlying offense.

"(b) Any property, whether the property of the person or the
property of another person, and such act recklessly places another person in
danger of physical injury or protected property of another in danger of
damage[.]"

(Emphasis added.) Significantly, the state did not allege that the property that youth
intended to burn was the apartment building. The petition instead alleged that youth
intentionally damaged "certain property, to wit: newspapers" and that, by starting that fire,
youth "recklessly" placed "protected property, to wit: a dwelling * * * in danger o[f]
damage." (Emphasis added.) The petition also alleged eight counts of felony murder,
relying on the first-degree arson charge as the underlying felony.

As emphasized above, the first-degree arson statute applies only when the
person intentionally damages "property." Property is defined by ORS 164.005(5) as "any
article, substance or thing ofvalue, including, but not limited to, money, tangible and
intangible personal property, real property, choses-in-action, evidence of debt or of
contract." (Emphasis added.) The measure of "value" is described in ORS 164.115:

"For the purposes of chapter 743, Oregon Laws 1971, the value of
property shall be ascertained as follows:

"(1) * * * [V]alue means the market value of the property at the time
and place of the crime, or if such cannot reasonably be ascertained, the cost
of replacement of the property within a reasonable time after the crime."

The state's theory of the case was that the small stack of newspapers burned
by youth was property because it had "recycling value." The particular newspapers
burned by youth were issues of This Week, a free publication of The Oregonian. Copies
of that publication were delivered weekly to the apartment building and usually were
placed in the laundry room for the residents. The bulk of the publication consisted of
advertisements and coupons. At trial, the apartment manager testified that she cleaned the
laundry room regularly, at which time she would remove any leftover editions and place
them in a recycling bin. The recycling bins eventually were emptied by Aloha Garbage
Disposal (Aloha), which would in turn deliver the recycled paper to Far West Fibers, Inc.
(Far West), a large-scale paper recycling company that purchases paper, sorts and bundles
it, and resells it to "repulp mills."

Far West derives its business from garbage services, including Aloha, and
from various organizations and other members of the public. When a seller delivers a
truckload of paper to Far West, the truck is weighed, emptied, then weighed again to
determine the weight of the load itself. If an individual comes into the business with a
smaller amount of paper, the Far West staff uses a smaller scale. That scale is kept inside
the office and weighs paper in one-half pound increments.

"[State:] And if I were to walk into your business, sight unseen, without an
appointment, and say, 'Mr. Paul, here's my newspapers. What will you give
me for them?,' what process would you undertake?

"[Paul:] Initially I'd try to encourage you to donate this amount to me,
because it's almost more hassle than anything else. If you insisted, I would
send you back to the small scale. I would send an employee with you, who
would then weigh them, * * * and we would then, out of our petty cash
fund, pay you the value of that."

Paul said that he would pay a minimum of five cents, because he does not generally keep
pennies in the petty cash fund. If a child came in with a small amount, however, he would
probably give the child a quarter, "to encourage young people to be in the resource
conservation mode." On cross-examination, Paul conceded that he would not be willing
to go to someone else's house to purchase a small quantity of newspaper because he is not
in the business of collecting or hauling paper. He noted, additionally, that he is aware of
other paper recycling companies that impose 40- or 50-pound minimum purchase
requirements. He also acknowledged that he is sometimes willing to pay people for
paper, even if it is not profitable, and that his willingness to purchase in small quantities
reflects his desire to "promote the conservation effort."

At the close of the state's case, youth moved for a dismissal (13) on the charges
of arson and felony murder, arguing that the state did not demonstrate that the newspapers
were property because it did not prove that they had "value." The state responded that the
newspapers had "recycling value" and that the coupons in the papers also had value. The
trial court agreed with the state and, consequently, denied youth's motion. Youth assigns
error to that ruling. Although our factual review is de novo, the question presented on
appeal is--at least as a threshold matter--one of law: did the state's evidence as to the
newspapers' "recycling value" satisfy the statutory definition of "property." We conclude
that it did not.

The Supreme Court's decision in State v. Whitley, 295 Or 455, 457-59, 666
P2d 1340 (1983), provides significant guidance. In Whitley, the issue was whether the
state had presented any evidence that a piece of rag constitutes "property" under the arson
statutes. The defendant, in protest, had thrown a burning rag onto the stage at a public
meeting on the campus of the University of Oregon. In construing ORS 164.325(1)(b),
the same provision at issue in this case, the court in Whitley observed that the legislature
had based Oregon's first-degree arson statute on the Model Penal Code (MPC), with one
significant deviation: Oregon's version requires that the defendant intentionally damage
"property" by starting a fire. The parallel provision in the MPC requires only that a
person "starts a fire." MPC § 220.1(2). With respect to the "property" element in
Oregon's arson statute, the court said:

"By injecting the necessity that the state prove that what was burned was
'property,' the state is bound by the definition of 'property' found in ORS
164.005(5). This means that as an element of proof the state must prove the
property had 'value[.]'"

Whitley, 295 Or at 458-59. The court concluded that, because the state in Whitley had not
presented evidence of the rag's "value," the state had failed to meet its burden of proof.
Id. at 460; see alsoHurst v. Employment Division, 81 Or App 367, 370, 724 P2d 946
(1986) (reversing Employment Appeals Board order because the order lacked a finding
that "two discarded cookies" were a substance or thing of value subject to theft).

As the court did in Whitley, we rely on statutory definitions to guide our
interpretation here. "Value" is defined as the "market value * * * at the time and place of
the crime." ORS 164.115(1). Although "market value" is not further defined by the
statute, we have observed that, for purposes of that statute, the term has its ordinary
meaning: what a willing buyer will pay a willing seller. State v. Pierce, 153 Or App 569,
575, 962 P2d 35, rev den 327 Or 448 (1998) (so concluding with respect to ORS
164.115(1)'s reference to term "market value"). See generally Webster's Third New Int'l
Dictionary, 1383 (unabridged ed 1993) (defining "market value" as "a price at which both
buyers and sellers are willing to do business: the market or current price").

Thus, "market value" is value of a particular kind. Fundamentally, for an
item to have market value, there must be a market for the item in which willing buyers
and sellers engage in arm's length transactions in which the item is traded for value. See generally
Campbell v. Karb, 303 Or 592, 740 P2d 750 (1987) (evidence of price fixed by two
parties dealing at arm's length is generally readily accepted as establishing fair market
value); PGE v. Taber, 146 Or App 735, 740, 934 P2d 538, rev den 325 Or 438 (1997)(where there is no market for a item, it cannot have market value). If there is no
established market for an item, its market value--if any--becomes speculative. Erickson
Hardwood Co. v. North Pacific Lumber, 70 Or App 557, 568, 690 P2d 1071 (1984), rev
den 298 Or 705 (1985). Speculative worth, however, is not enough; "value," for purposes
of the relevant definition of property, cannot be established in the abstract or by
theoretical supposition. See, e.g., State v. King, 118 Or App 4, 7, 846 P2d 412 (1993)
(evidence that scrap metal value "varies" is not sufficient to prove market value for
purposes of the statutory "property" definition).

Here, the state put on evidence that the newspapers that youth burned could
have been redeemed at Paul's recycling facility for somewhere between five and twenty-five cents, depending on the age of the seller. The state relies on that testimony to supply
the necessary proof of market value that was lacking in Whitley. In doing so, the state
implicitly assumes that, because Paul is a willing purchaser of small quantities of paper,
such quantities have a "market value." As we explain below, however, the notion of
market value requires the existence of both a willing buyer and a willing seller to
demonstrate that there is an actual market in which the good has value in trade. In this
case, the state never established that willing sellers of such small amounts of newspapers
exist.

Recall the evidence. Paul testified that other paper recycling companies in
the Portland metropolitan area impose minimum purchase requirements of 40 or 50
pounds. In his individual case, he might be willing to purchase a small quantity of
newspaper if someone were to bring him such an amount. Before purchasing it, he would
first encourage any person in that situation to donate the paper because, to him, "it's
almost more hassle than anything else." His willingness to purchase small quantities of
newspaper is not motivated by his business or economic interests but by his desire "to
promote the conservation effort." Paul, moreover, acknowledged that he would not
purchase such a small quantity off-site, and thus he would not be willing to go to the
apartment complex, collect the newspapers from the apartment complex's laundry room,
and pay anyone for them. As a result, any payment he would make for a quantity of
newspaper as small as that burned by youth would depend on someone bringing the
newspaper to him.

That evidence, rather than suggesting a true recycling "market" for such
small quantities of newspaper, tends to establish the opposite. According to the state's
evidence, recycling businesses generally pay only for much larger quantities of
newspaper; they are not willing to deal in small quantities such as the amount burned by
youth in this case. The situation is thus analogous to that in Ward v. Department of
Revenue, 293 Or 506, 650 P2d 923 (1982). There, the Supreme Court declined to use the
value of a large piece of property as a basis for establishing the value of smaller parcels,
because the smaller ones were more readily marketable. Likewise, here, the existence of
an actual market for large quantities of recyclable newspaper does not establish a general
market for smaller quantities, because the evidence shows that the demand for smaller
quantities is substantially less and, indeed, all but nonexistent.

The omission is significant. Where market value is concerned, it "takes two
to make a bargain," and a willing seller as well as a willing buyer is required. Highway
Comm. v. Superbilt Mfg. Co., 204 Or 393, 420, 281 P2d 707 (1955). Necessarily, then,
for an actual trade to occur, there must be sellers willing to sell on a willing buyer's terms.
Here, the state needed to show the existence of someone willing to take the small quantity
of newspaper involved, transport it whatever distance would be involved, and collect a
nickel (or, in the case of a child, a quarter). The state did not do so. It would be purely
speculative to infer the existence of someone willing to sell on the terms on which Paul
was willing to buy. For that reason, the evidence did not establish the existence of a
market for the small quantity of newspaper burned by youth in this case, and thus that the
property burned had "market value." SeeTaber, 146 Or App at 740 (market value
requires a market for an item).

The state's reliance on the value of the coupons in the newspapers suffers
from the same shortcoming. As to the coupons, the only testimony presented by the state
was that of the apartment manager, who merely stated that the newspaper contained
coupons but did not discuss or describe them further. The state also placed into evidence
some of the This Week newspapers that were in the laundry room and that were not
destroyed in the fire. At trial, as on appeal, the state argued only that the coupons have
value because consumers can save money purchasing the items for which the coupons can
be redeemed. The trial court agreed, concluding that the coupons "have value to most
families" and that such value, in addition to the recycling value, satisfied the statutory
definition of property.

Because the state failed to present legally sufficient evidence of the
newspaper's "value," the state failed to prove the "property" element of first-degree arson
under ORS 164.325(1)(b). Because the state could not prove all of the elements of first-degree arson, the state could not prove felony murder. Consequently, the trial court erred
in denying youth's motion to dismiss the charges of first-degree arson and felony murder.

Affirmed as to trial court's finding of jurisdiction based on an act that, if
committed by an adult, would constitute crime of criminally negligent homicide; reversed
as to trial court's finding of jurisdiction based on acts that, if committed by an adult,
would constitute crimes of arson in the first degree and felony murder; remanded for entry
of amended order of commitment.

1. As we later explain, the trial court suppressed all of youth's statements after
youth said, "We're done."

2. For a discussion of the origins of the due process voluntariness analysis,see
Dickerson v. United States, 530 US 428, 120 S Ct 2326, 147 L Ed 2d 405 (2000). See
also Brown v. Mississippi, 297 US 278, 286, 56 S Ct 461, 80 L Ed 682 (1936) (relying on
the Due Process Clause to exclude a confession procured through torture, finding that the
police actions were "revolting to the sense of justice").

3. The state argues that, in State v. Stevens, 311 Or 119, 137, 806 P2d 92
(1991), the Oregon Supreme Court "suggest[s]" that the Oregon Constitution's protection
against involuntary confessions is limited to circumstances involving coercion. In
Stevens, the court examined the Connelly Court's adoption of the preponderance-of-evidence standard for voluntariness. In the course of that examination, the court
acknowledged that the federal test requires police coercion. Although the state does not
rely on Stevens as resolving the issue, even the limited reliance it places on that case is
too much. Stevens simply does not signal the court's leaning on the issue, one way or the
other.

5. The parties' respective arguments proceed on the assumption that the
protection afforded by that provision to "criminal prosecutions" extends to juvenile
delinquency proceedings. The Oregon Supreme Court's decision in State ex rel Juv. Dept.
v. Reynolds, 317 Or 560, 857 P2d 842 (1993), however, potentially calls that assumption
into question. In Reynolds, the court held that juvenile delinquency proceedings are not
criminal prosecutions for purposes of the protections afforded by Article I, section 11, of
the Oregon Constitution. Whether the same conclusion might follow under Article I,
section 12, has not been raised or briefed, and the answer to it is not obvious and beyond
dispute. Consequently, we note the issue without expressing any view on its resolution.

7. The court's analysis of the nature and scope of the protection against
compelled confessions has continued to recognize that the constitutional guarantee is
anchored in the traditional common-law rule against use of induced confessions. See,
e.g.,State v. Smith, 301 Or 681, 696-97, 725 P2d 894 (1986); State v. Mendacino, 288 Or
231, 236, 603 P2d 1376 (1979).

8. See alsoEly, 237 Or at 334-35 (confession excluded where school officials
promised teacher that he would not be prosecuted if he confessed); State v. Linn, 179 Or
499, 513, 173 P2d 305 (1946) (confession excluded where police threatened that if
defendant "did it 'the hard way,' they would fight him to the last inch," combined with
further threat of harsh sentence for refusing to confess); State v. Cochran, 72 Or App 499,
696 P2d 1114 (1985) (confession excluded based on police trickery in convincing
defendant that they had evidence that they in fact did not have; decided on federal
grounds); State v. Capwell, 64 Or App 710, 716, 669 P2d 808 (1983) (confession
excluded where police told defendant that if he confessed he would receive treatment
rather than be prosecuted).

9. See State v. McCoy, 165 Or App 499, 505, 998 P2d 709, rev den 331 Or
193 (2000) (officer's "very low key" and "conversational" encounter refuted claim of
involuntariness; no evidence that confession was induced "by threats or promises
intimating that defendant would receive favorable treatment if he cooperated or by any
implied or direct threats of force"); State v. Harmon, 77 Or App 705, 714 P2d 271, rev
den 301 Or 240 (1986) (defendant's statements were not involuntary simply because
police did not advise defendant that he was a suspect; police questioning of defendant
was noncoercive and was in the presence of defendant's attorney); State v. Williams, 64
Or App 448, 668 P2d 1236, rev den 296 Or 120 (1983) (confession was voluntary where
deputies were careful not to make promises to defendant).

10. Other cases similarly rejecting involuntariness challenges based only on an
accused's cognitive abilities or internal psychological pressures include: State v. Davis,
98 Or App 752, 780 P2d 807 (1989), rev den 309 Or 333 (1990) (trial court's reliance on
defendant's "dull normal" intelligence level was misplaced); State v. Hickan, 71 Or App
471, 477, 692 P2d 672 (1984) (court concluded that defendant's statements were
voluntary and rejected his argument that, "because he is mentally retarded, his will to
resist was overcome by the mere fact of questioning itself"); State v. Smith, 7 Or App 485,
492 P2d 317 (1971) (confession of 17-year-old was voluntary despite near-illiteracy and
"borderline intelligence between retardation and low average"); see alsoState v. Keiper, 8
Or App 354, 359, 493 P2d 750, rev den (1972) (suggesting that linking coercion with a
defendant's internal psychological pressures would "not only greatly extend the existing
legal concepts of improper coercion, but as a practical matter would abort the use of
statements or confessions given to the police by a defendant in virtually every criminal
case").

11. The statute bears the title, "Value of stolen property." But that title is a
misnomer. By its express terms, the statute unambiguously applies to all of "chapter 743,
Oregon Laws 1971," which encompasses the entire 1971 criminal code, which includes
ORS chapter 163. The title is not part of the statute and is of no legal significance. ORS
174.540; Exchange Properties, Inc. v. Crook County, 164 Or App 517, 520, 992 P2d 486
(1999).

12. Youth described the newspapers he burned as a one-half to three-quarter
inch stack. The exhibit is a stack of newspapers at least three inches thick. The
comparison suggests that youth burned approximately two editions of the newspaper.

13. To be precise, youth moved for a judgment of acquittal. But as we have
done in other cases, we treat the motion as a motion for dismissal, which is the correct
procedural device to test the sufficiency of evidence in a juvenile proceeding. See State
ex rel Juv. Dept. v. Smith, 126 Or App 646, 648, 651, 870 P2d 240 (1994) (treating
motion for acquittal in delinquency proceeding as motion to dismiss and reviewing
juvenile court's ruling de novo).

14. In response to another question from the prosecutor, Paul also described
that he regularly deals with charitable organizations that collect newspaper for fund-raising purposes. He did not describe any of them as considering it worthwhile to bring
only a handful of newspapers to him. Indeed, Paul described such charitable
organizations as making an effort to "collect" newspapers and then bringing them to Paul,
suggesting that they collected more substantial quantities. That suggestion was reinforced
by Paul's testimony that, at the time of trial, the price for recyclable newspaper had fallen
below a penny a pound, which had the effect of discouraging charitable collection efforts.

15. "Value in use," refers to the "utility of an object in satisfying, directly or
indirectly, the needs or desires of human beings." Black's Law Dictionary, 1721 (4th ed
1951). The same idea is now termed "use value": "A value established by the utility of an
object instead of its value upon selling it or exchanging it." Black's Law Dictionary, 1550
(7th ed 1999).

The state's argument illustrates the distinction: "A coupon worth $1 off each gallon
of milk may be worth nothing to someone who does not drink milk. But for a parent with
young children who go through four gallons of milk a week, that same coupon would
have a value of $4." That is use value--i.e., the value of the utility of an object--not
market value. The coupon has value because its use reduces the price of milk in a market
transaction in which the object of the trade is milk, not the coupon.

16. We note in that regard that we have examined the exhibit consisting of the
charred newspapers found in the laundry room. Most of the coupons lack any notation of
cash redemption value. The state did not--and does not now--rely on the fact that a few of
the coupons have a declared cash redemption value of a fraction (1/20th) of one cent. At
least arguably, their cash redemption value establishes that a merchant is willing to pay a
fractional amount for some of the coupon themselves. Again, however, the record
contains no evidence of a willing seller. That is, the evidence fails to establish that
anyone considered the coupons in the This Week newspapers to be valuable enough to
take the time and go to th effort to clip them, compile them, and redeem them for a de
minimis amount. Again, it "takes two to make a bargain." Superbilt Mfg. Co., 204 Or at
420. There is no evidence of the existence of a willing seller of the coupons contained in
these particular newspapers.